Sher Khan @ Bunty S/O Noor Khan vs State Of Mha. Thr. Pso Ps ...
2022 Latest Caselaw 11520 Bom

                                1                   Criminal Appeal No.447.22.odt




IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         NAGPUR BENCH AT NAGPUR

          CRIMINAL APPEAL NO.447 OF 2022


    Sher Khan @ Bunty s/o Noor Khan,
    Aged about 30 years,
    Occupation-Labour,
    R/o. Bhande Plot, Seva Dal Nagar,
    Nagpur.                                   ..          Appellant



                       .. Versus ..


    1]      State of Maharashtra,
            Through Police Station Officer,
            Police Station, Sakkardara,
            Nagpur.

    2]      Ranjana w/o Haridas Sawarkar,
            Aged about 42 years,
            Occupation-Nil,
            R/o. Near Church, Bhande Plot,
            Seva Dal Nagar,
            Nagpur.                        ..            Respondents


                         ..........
    Shri D.V. Chauhan, Advocate for the Appellant,
    Shri H.D. Dubey, Additional Public Prosecutor for Respondent
    No.1-State,
    Ms. Jyoti Vajani, Advocate (Appointed) for Respondent No.2.
                         ..........


               Coram: Vinay Joshi and
                      Mrs. Vrushali V. Joshi, JJ.

               Date:    14th November, 2022.
                              2                  Criminal Appeal No.447.22.odt




ORAL JUDGMENT (PER : Vinay Joshi, J.)



         Heard.

2. Admit. Heard finally by consent of both learned Counsel

appearing for the parties.

3. This is an appeal under Section 14-A(2) of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989 (hereinafter referred to as the 'said Act') challenging the

order dated 31.01.2022 by which regular bail has been rejected.

4. The rejection of bail application by the learned Special

Court caused the appellant to challenge the said order in terms of

Section 14-A of the said Act. The appellant was arrested in Crime

No.258/2020 with Police Station, Sakkardara, Nagpur for the

offences punishable under Sections 302 r/w 34 of the Indian Penal

Code, Section 4 r/w 25 of the Arms Act, 1959 and Section 135 of

the Maharashtra Police Act, 1951. Lateron, the provisions of

Section 3 (2)(v) of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 have been added. The

appellant Sher Khan @ Bunty s/o Noor Khan was arrested in the

said crime on 22.04.2020. He has applied to the Special Court for 3 Criminal Appeal No.447.22.odt

grant of regular bail, however, it was rejected and, therefore, this

appeal.

5. At the instance of report lodged by the wife of deceased

Haridas namely Ranjana Sawarkar, dated 21.04.2020, the crime

has been registered. It is her case that there was a long standing

dispute in between her husband Haridas (deceased) with the

appellant Bunty at the instance of business premises. She stated

that on 21.04.2020 in the afternoon around 4.00 pm, her husband

left the house. Within short time, a neighbouring lady namely

Vastala came to her informing that appellant Bunty and his father

Noor Khan (co-accused) assaulted Haridas on the road.

Immediately informant Ranjana rushed to the place and saw that

the appellant and his father were assaulting Haridas by means of

Sword. She tried to intervene, however, appellant deter her by

show of sword. Informant raised alarm on which assailants fled.

With the assistance of the nearby persons, she had shifted injured

Haridas to the hospital, where he succumbed to the injuries.

6. Learned counsel appearing for the appellant has not

disputed that there was trite rivalry in between two families

namely informant and appellant-accused. He has conceded the

position that rival police reports have been filed against each 4 Criminal Appeal No.447.22.odt

other. While making submissions, Advocate Shri D.V. Chauhan

has concentrated only on peripheral ground meaning thereby not

on the point of exact assault. He would submit that there is

discrepancy in the statement of informant Ranjana and eyewitness

Vastala about the manner in which injured Haridas was shifted to

the hospital. It is pointed out that informant Ranjana stated that

soon after the assault, they have shifted Haridas by auto-rickshaw

of one Satpute. Contextually he took me through the

supplementary statement of Ranjana and one Nilesh, wherein it is

stated that initially the injured was carried to some distance on

motorcycle and then by auto-rickshaw of Satpute.

7. Likewise he has pointed out a discrepancy that the

informant stated that injured was shifted from the place of

occurrence to the medical hospital while in her supplementary

statement and some other witnesses, stated that initially injured

was taken to Wanjari Hospital and then to Medical Hospital.

We are not impressed by said submission because even if there is

discrepancy, it pertains to the mode by which after assault injured

was shifted and means of convenience. By any stretch of

imagination the said submission would not affect the core issue of

actual assault.

5 Criminal Appeal No.447.22.odt

8. The informant Ranjana has specifically stated that the

appellant and his father have assaulted her husband Haridas by

means of Sword leaving him in the pool of blood. We have gone

through the police statement of Vastala who had informed about

the occurrence. This witness has also specifically stated that at the

time of occurrence, she was at her house. She saw that while

deceased Haridas was passing from the road, appellant and his

father assaulted him by means of sharp edged weapon namely

knife (pkdq ) and a long knife (lqjk). She stated that immediately

she went to the house of Ranjana and informed the occurrence.

Particularly she stated that while informant Ranjana was tried to

intervene, the appellant threatened her with dire consequences.

She has noted bleeding injuries on the chest and stomach of

Haridas, who was informed to be died lateron. Her statement

squarely supports the statement of informant.

9. As per the prosecution case, the occurrence took place on

21.04.2020 around 4.00 pm, whilst the first information report

was lodged on the same day around 10.00 pm meaning thereby

within four to five hours from the occurrence. The statement of

eyewitness Vastala was also recorded on the very following day.

Prima facie, it is evident that within few hours from the

occurrence, the report was lodged with specific names and role of 6 Criminal Appeal No.447.22.odt

appellant and his father.

10. We have also gone through the statement of one Aniket,

who also claims to be an eyewitness and stated about the assault

by appellant on deceased. Learned counsel appearing for

appellant has submitted that there is discrepancy in the names of

the persons who have shifted Haridas to the hospital. Particularly,

he has pointed that though the names of Aniket, Nilesh Gaikwad,

Santosh Sawarkar were stated in the first information report,

however, their statements have been belatedly recorded. It is also

submitted that the statement of brother of deceased namely

Santosh has not been recorded. True, prima facie, there appears

to be delay in recording statements, but notably they have not

claimed to be eyewitnesses to the occurrence, their role is

restricted to the aspect of shifting the deceased to the hospital,

therefore, the submission in this regard would not shatter the

cores issue.

11. During the course of investigation, at the instance of the

appellant, the police have seized blood stained weapon and the

clothes. The learned counsel appearing for the appellant has

invited our attention to some inadmissible portion of the statement

of informant to contend that the said practice has been deprecated 7 Criminal Appeal No.447.22.odt

by the Supreme Court. In this regard, our attention has been

invited to Para 23 of the decision of the Hon'ble Supreme Court in

the case of Venkatesh alias Chandra and another .vs. State of

Karnataka, 2022 SCC Online SC 765. Certainly the portion which

is hit by the principles of Evidence Act cannot be read into

evidence, however, the fact remains that at the instance of

appellant, there is seizure of blood stained weapon and clothes.

The seized articles including weapon has been sent to Chemical

Analysis of which report shows finding of human blood on the

articles seized. The said piece of evidence connects the link of

appellant with the concerned crime. We have gone through the

postmortem notes wherein we find that there are stab incised

wounds on the vital part of the body of deceased.

12. The learned counsel for the appellant attracted our

attention to a communication, named as weapon query letter

having reference of muddemal knife, dated 22.04.2020. In this

regard it is submitted that alleged seizure at the instance of

appellant is on 24.04.2020 and, therefore, the seizure is doubtful.

Though, at first blush, there appears to be discrepancy, but at this

stage, we are not inclined to comment anything since the

prosecution may explain the said discrepancy during the course of

trial.

8 Criminal Appeal No.447.22.odt

13. Apparently, there was a long standing rivalry meaning

thereby sufficient motive. The investigation papers disclose that

within few hours from the occurrence, crime was registered with

specific name of appellant which prima facie eliminates the

chances of concoction. Both informant and eyewitness has

specified appellant's role with the nature of weapon. Beside that

there are other witnesses who corroborates the statement of the

star witnesses. The assault took place in broad daylight on the

public road wherein the person has been done to death by sharp

edged weapon shows total lawlessness. Having regard to the

seriousness of the crime and the extent of punishment, we are not

inclined to use our discretion in releasing the appellant on bail.

Moreover, we also express that if appellant is released on bail

there is likelihood of tampering the prosecution witnesses who are

females. Having regard to above, appeal stands dismissed. No

costs.

(Mrs. Vrushali V. Joshi, J.) (Vinay Joshi, J.)

gulande Signed By:ABHIMANYU SHANKARRAO GULANDE Personal Assistant High Court Nagpur Signing Date:16.11.2022 17:28